- Twenty-Seventh F.A. Mann
Lecture: 25 November 2003
By Johan Steyn [Lord Steyn is a judicial member of the House
of Lords - the UK's supreme court] pdf version of lectureThe
most powerful democracy is detaining hundreds of suspected foot
soldiers of the Taliban in a legal black hole at the United States
naval base at Guantanamo Bay, where they await trial on capital
charges by military tribunals. This episode must be put in context.
Democracies must defend themselves. Democracies are entitled
to try officers and soldiers of enemy forces for war crimes.
But it is a recurring theme in history that in times of war,
armed conflict, or perceived national danger, even liberal democracies
adopt measures infringing human rights in ways that are wholly
disproportionate to the crisis. One tool at hand is detention
without charge or trial, that is, executive detention. Ill conceived
rushed legislation is passed granting excessive powers to executive
governments which compromise the rights and liberties of individuals
beyond the exigencies of the situation. Often the loss of liberty
is permanent. Executive branches of government, faced with a
perceived emergency, often resort to excessive measures. The
litany of grave abuses of power by liberal democratic governments
is too long to recount, but in order to understand and to hold
governments to account we do well to take into account the circles
of history.

Judicial branches of government, although charged with the
duty of standing between the government and individuals, are
often too deferential to the executive in time of peace. How
then would the same judges act in a time of crisis? The role
of the courts in time of crisis is less than glorious. On this
side of the Atlantic Liversidge v Anderson (1942) is revealing.
The question before the House of Lords was a matter of the interpretation
of Defence Regulation 18B which provided that the Home Secretary
may order a person to be detained "if he has reasonable
cause to believe" the person to be of hostile origin or
associations. A majority of four held that if the Home Secretary
thinks he has good cause that is good enough. Lord Atkin chose
the objective interpretation: the statute required the Home Secretary
to have reasonable grounds for detention. Lord Atkin said: "amid
the clash of arms the laws are not silent" and warned against
judges who "when face to face with claims involving the
liberty of the subject show themselves more executive minded
than the executive". At the time the terms of Lord Atkin's
dissent caused grave offence to his colleagues. But Lord Atkin's
view on the interpretation of provisions such as Regulation 18B
has prevailed: the Secretary of State's power to detain must
be exercised on objectively reasonable grounds. To that extent
Liversidge v Anderson no longer haunts the law . I have referred
to a case sketched on the memory of every lawyer because, despite
its beguiling framework of a mere point of statutory interpretation,
it is emblematic of the recurring clash of fundamentally different
views about the role of courts in times of crisis. How far contemporary
decisions match Lord Atkin's broader philosophy is far from clear.
The theory that courts must always defer to elected representatives
on matters of security is seductive. But there is a different
view, namely that while courts must take into account the relative
constitutional competence of branches of government to decide
particular issues they must never, on constitutional grounds,
surrender the constitutional duties placed on them.

Even in modern times terrible injustices have been perpetrated
in the name of security on thousands who had no effective recourse
to law. Too often courts of law have denied the writ of the rule
of law with only the most perfunctory examination. In the context
of a war on terrorism without any end in prospect this is a sombre
scene for human rights. But there is the caution that unchecked
abuse of power begets ever greater abuse of power. And judges
do have the duty, even in times of crisis, to guard against an
unprincipled and exorbitant executive response.

Not every one will agree with the picture I have put before
you. Let me therefore explain, with reference to Second World
War experience, on both sides of the Atlantic, why I feel justified
in what I have said. During the Second World War the United States
placed more than 120,000 American citizens of Japanese descent
in detention camps. There was no evidence to cast doubt on the
loyalty of these people to the United States. The military authorities
took the view, as a general put it, that "a Jap is a Jap."
In due course it was recognised by the United States that a grave
injustice was done. In 1988 congress enacted legislation acknowledging
that the "actions were taken without adequate security reasons"
and that they were largely motivated by "racial prejudice,
wartime hysteria and a failure of political leadership".

Restitution was made to individuals who were interned. This
is to the great credit of the United States. On the other hand,
it must be remembered that an earlier opportunity arose in 1944
in Korematsu v United States for the Supreme Court to redress
the injustice. Korematsu was a Californian of Japanese ancestry.
After the bombing of Pearl Harbour he volunteered for the army
but was rejected on health grounds. He obtained a defence industry
job. In June 1942 he was arrested for violation of the internment
orders. He challenged the constitutionality of the orders. The
issue was whether military necessity was established. The court
was divided. Delivering the opinion of the majority of the Court,
Justice Black stated: "To cast this case into outlines of
racial prejudice, without reference to the real military dangers
which were presented, merely confuses the issue." Demonstrating
significant deference to the executive, he concluded: ".
. . the military authorities considered that the need for action
was great, and time was short. We cannot - by availing ourselves
of the calm perspective of hindsight - now say that at that time
these actions were not justified."

Not many in the United States, in the moderate spectrum of
views, would now defend this outcome even viewed from the perspective
of 1942. In any event, in 1984 a federal district court overturned
Korematsu's conviction on the ground that the government had
"knowingly withheld information from the courts when they
were considering the critical question of military necessity."
In giving judgment Judge Patel observed that the case "stands
as a caution that in times of distress the shield of military
necessity and natural security must not be used to protect governmental
institutions from close scrutiny and accountability".

The second decision of the United States Supreme Court which
I must mention is Ex parte Quirin (1942), the so called "Saboteurs
case" . It is a case of a very different kind and in many
ways more understandable than Korematsu. It is cited by United
States government spokesmen as authority for the detentions at
Guantanamo Bay. In June 1942, when the United States was at war
with Germany, eight Nazi agents, including one American citizen,
arrived by submarine in the United States. They intended to commit
acts of sabotage. Two among them revealed the plot. On 2 July
1942 President Roosevelt ordered the men to be tried by military
commission for offences against the law of war and the Articles
of War. The Proclamation also provided that they were to be denied
access to the courts. On 8 July 1942 the trial commenced and
proceeded in secret. Three weeks later the Supreme Court convened
a special Summer session to consider petitions for habeas corpus
made on behalf of the saboteurs. The saboteurs argued that they
had a constitutional right of due process and that they were
entitled be tried before an ordinary civilian court. On 31 July
1942 the Supreme Court made a unanimous order that the military
commission was legally constituted and the petitioners were lawfully
detained. By 8 August 1942 all the saboteurs had been found guilty
and six of the eight had been executed. The turncoats had their
sentences commuted. Almost three months after the saboteurs were
executed the Supreme Court made public a unanimous decision holding
that Congress had validly authorised military commissions to
try violations of the laws of war. The court did, however, hold
that the exclusion of judicial review did not apply to habeas
corpus. Secret trials without the usual guarantees of fair trial
were, however, constitutionally acceptable. In the context of
the detentions at Guantanamo Bay it will be necessary to return
to this case.

Between 1939 and 1945 almost 27,000 persons were detained
in Britain without charge or trial and 7,000 were deported. The
danger facing Britain was, of course, immeasurably greater than
that of the United States. In the circumstances the total figure
does not seem excessive. But most detentions were probably not
justified. Not all cases of detention ended as happily as that
of the German born Michael Kerr who was detained in 1940 for
6 months, released to fly for the RAF during the rest of the
war, and rose to become a Lord Justice of Appeal. In his book
In the Highest Degree Odious Professor A.W. Brian Simpson concluded
that the courts washed their hands enthusiastically of responsibility
for the legality of detentions. He said [418-419]:

". . . the courts did virtually nothing for the detainees,
either to secure their liberty, to preserve what rights they
did possess under the regulation, to scrutinize the legality
of Home Office action, or to provide compensation when matters
went wrong. The legal profession too, as a profession, did nothing;
I am told that it was not easy to persuade lawyers to act for
detainees at all. . . . So far as the government lawyers were
concerned, the Treasury Solicitor's Department comes across as
unattractive; its ethos was ruthless determination to win cases
at the least possible cost. One cannot but be struck by the absence
in the papers of any hint of sympathy to those who litigated,
or any generosity of spirit to individuals none of whom had been
charged or convicted of any crime. Of the Law Officers Somervell
seems to have sailed very close to the wind, and both he and
Jowitt changed their tune over the relationship between the courts
and the regulation. I cannot but suspect that other examples
of dubious conduct have been concealed by the accidental loss
of Treasury Solicitor's files . . ."

"There is a conflict between the interests of national
security on the one hand the and freedom of the individual on
the other. The balance between these two is not for a court of
law. It is for the Home Secretary. He is the person entrusted
by Parliament with the task."

Exhibiting great deference to the executive Lord Denning added:

"In some parts of the world national security has on
occasions been used as an excuse for all sorts of infringements
of individual liberty. But not in England. Both during the wars
and after them, successive ministers have discharged their duties
to the complete satisfaction of the people at large."

Possibly we would now say that such instinctive trust in public
servants, executive or judicial, has been replaced by a culture
requiring in principle openness and accountability from all entrusted
with public power.

During the Second World War a new idea took root. Previously
there had been an assumption that however outrageously a government
treated individuals it was not properly the concern of other
governments. The Third Reich and the Holocaust changed that perception.
Out of the ashes of the war came the creation in 1945 of the
United Nations committed by its charter to uphold "the dignity
and worth of the human person". The adoption on 10 December
1948 in Paris of the Universal Declaration of Human Rights -
the legacy of Mrs Roosevelt - was a momentous event. It gave
birth to the human rights movement and the rights revolution.
Eighteen years later it became known together with the International
Covenant on Social and Cultural Rights (1966) and the International
Covenant on Civil and Political Rights (1966) as the International
Bill of Rights. Central to these instruments is the dignity of
the human person and the maintenance of the rule of law to protect
that most fundamental of rights. A large number of treaties,
regional and specific, the descendants of the Universal Declaration,
enshrine the same principle. For present purposes the Convention
Relative to the Treatment of Prisoners of War of 12 August 1947
(the Third Geneva Convention III) is relevant. It contained detailed
provisions protecting prisoners of war. I am content to assume
that the Taliban soldiers detained at Guantanamo Bay are on a
literal interpretation not covered by the Third Geneva Convention
because they did not wear uniforms on the battlefield. But Article
75 of the First Protocol Additional to the Geneva Conventions
of 12 August 1949, dated 8 June 1977, contains more far reaching
provisions to protect prisoners captured during armed conflicts.
Whatever their status, such prisoners are entitled to humane
treatment. It is true that the United States has not ratified
this Protocol. But it is generally accepted that Article 75 reflects
customary international law. Indeed when the United States government
decided not to ratify the Protocol it had before it expert advice
that many articles of the Protocol accurately reflect customary
international law. Specifically it was advised that Article 75
was an article which was already part of customary international
law and therefore binding on the United States. Many of the provisions
of Article 75 are relevant. The use of torture and inhuman or
degrading treatment is prohibited. The authorities are entitled
to question a prisoner but there is no obligation on the prisoner
to answer the questions put. Coercing a prisoner to confess is
unlawful. Article 75(4) is particularly significant. It provides:

"No sentence may be passed and no penalty may be executed
on a person found guilty of a penal offence relating to the armed
conflict except pursuant to a conviction pronounced by an impartial
and regularly constituted court respecting the generally recognised
principles of regular judicial procedure.."

In the 1990s there were important developments. On 16 October
1998 Augusto Pinochet, the former President of Chile, was arrested
in London in response to an arrest warrant issued by a Spanish
court. Henry Kissinger has described him as "a fashionably
reviled man of the right". Given what we now know the verdict
of history may be a little more severe. In any event, the warrant
alleged crimes of murder, torture and "disappearances".
The final decision of the House of Lords was to the effect that
crimes under international law, such as torture, could not be
acts within the official capacity of a Head of State and that
extradition proceedings could continue. Despite the fact that
due to his mental state Pinochet could eventually not be tried,
the decision of the House of Lords was an important breakthrough
on immunities and universal jurisdiction. Equally important was
the creation of ad hoc international criminal tribunals in the
case of Rwanda, Yugoslavia and Milosevic to try defendants on
war crimes. Despite the negative role of the United States, the
International Criminal Court was set up. To date 91 countries
have ratified or acceded to the Treaty. The court is fully operational.
Recently Madam Justice Arbour of the Canadian Supreme Court has
eloquently summed up what this means. She said:

"We have witnessed a maturation process from the declaratory
era of some 50 years ago, through a monitoring and denunciatory
phase, and now into the modern era of efficient enforcement through
personal criminal responsibility. This culture carries with it
the expectations of millions of human rights holders who until
very recently did not perceive themselves as such. But globalization
of the culture of rights, combined with the spread of democracy,
has irreversibly changed their sense of entitlement, . . ."

There was great progress on the humanitarian front between
1948 and 2001.

Then came the horror of 11 September 2001. Using civilian
aircraft as missiles Al-Qaeda terrorists attacked and attempted
to attack the great symbols of the United States government and
nation. A military response was inevitable. Three days later
President Bush declared a national emergency. Congress rushed
through the Patriot Act which gave to the executive vast powers
to override civil liberties. Congress promptly authorised the
President to use all necessary force against, inter alia, those
responsible for the terrorist attacks of September 11 to prevent
further attacks. On 7 October 2001 the air campaign against Afghanistan
began. In military terms the action was successful. But now the
region is left with a ravaged country which under its war lords
has enormously increased its production of opium grown for the
world market. Afghanistan was followed by the deeply controversial
Iraqi war of "shock and awe" which fractured the international
legal order so carefully crafted in the crucible of Lake Success
in 1945. It is easier to destroy than to develop international
institutions. But tonight I must concentrate on Guantanamo Bay.

On 13 November 2001 the President issued an order providing
for the trial by military commissions of persons accused of violations
of the laws of war. That order has been repeatedly amended. Beginning
in January 2002 some 660 prisoners have been transferred at first
to Camp X-Ray and then Camp Delta at Guantanamo Bay. The number
included children between the ages of 13 and 16 as well as the
very elderly. Virtually all the prisoners are foot soldiers of
the Taliban. It has been reported that there are no "big
fish" among the prisoners. Contemporaneous reports stated
that the prisoners, who are Muslims, were compelled contrary
to the tenets of their religion to shave off their beards.

By a blanket presidential decree all prisoners have been denied
prisoners of war status. Before the armed conflict started, the
Taliban government had been in effective control of Afghanistan.
The vast majority of the prisoners were soldiers of the Taliban
forces. Let me assume that at Guantanamo Bay there are also some
prisoners who are Al-Qaeda terrorists. But if there are such
prisoners, criminal outlaws as they may be, they are also in
law entitled to the protection of humanitarian law.

How prisoners at Guantanamo Bay have been treated we do not
know. But what we do know is not reassuring. At Camp Delta the
minute cells measure 1.8m by 2.4m. Detainees are held in these
cells for up to 24 hours a day. Photographs of prisoners being
returned to their cells on stretchers after interrogation have
been published. The Red Cross described the camp as principally
a centre of interrogation rather than detention. The Washington
Post suggested there has been a sweeping change in United States
policy on torture since September 11, despite public pronouncements
against its use. It quotes Cofer Black, the former director of
the CIA's counter-terrorist branch, as telling a congressional
intelligence committee: "All you need to know: there was
a before 9/11, and there was an after 9/11 . . . After 9/11 the
gloves came off", The United States website records 32 attempted
suicides committed by 27 prisoners. A report of Sunday 16 March
2003 reported officials as saying that the techniques of interrogation
are "not quite torture, but as close as you can get".
It appears likely that "stress and duress" tactics
of disrupting sleep and forcing prisoners to stand for extended
periods, which have been used by United States interrogators
in Afghanistan, are also employed at Guantanamo Bay. The purpose
of holding the prisoners at Guantanamo Bay was and is to put
them beyond the rule of law, beyond the protection of any courts,
and at the mercy of the victors. The procedural rules do not
prohibit the use of force to coerce prisoners to confess. On
the contrary, the rules expressly provide that statements made
by a prisoner under physical and mental duress are admissible
"if the evidence would have value to a reasonable person",
i.e. military officers trying enemy soldiers. At present we are
not meant to know what is happening at Guantanamo Bay. But history
will not be neutered. What takes place there today in the name
of the United States will assuredly, in due course, be judged
at the bar of informed international opinion.

Having invoked a historical perspective, I must acknowledge
that, despite the Magna Carta, in harsher times England resorted
to the expedient of sending prisoners beyond the reach of the
rule of law. One of the charges made against Edward Hyde, the
First Earl of Clarendon, in his impeachment in 1667 was that
he had attempted to preclude habeas corpus by sending persons
to "remote islands, garrisons, and other places, thereby
to prevent them from the benefit of the law", that is by
sending persons to places where the writ of habeas corpus would
not be available. In 1679 this loophole was blocked by section
11 of the Habeas Corpus Amendment Act 1679. For more than three
centuries such stratagems to evade habeas corpus have been unlawful
in England.

The regime applicable at Guantanamo Bay was created by a succession
of presidential orders. It can be summarised quite briefly. The
prisoners at Guantanamo Bay, as matters stand at present, will
be tried by military tribunals. The prisoners have no access
to the writ of habeas corpus to determine whether their detention
is even arguably justified. The military will act as interrogators,
prosecutors, defence counsel, judges, and when death sentences
are imposed, as executioners.

The trials will be held in secret. None of the basic guarantees
for a fair trial need be observed. The jurisdiction of the United
States courts is excluded. The military control everything. It
is, however, in all respects subject to decisions of the President
as Commander-in-Chief even in respect of guilt and innocence
in individual cases as well as appropriate sentences. It is an
awesome responsibility. The President has made public in advance
his personal view of the prisoners as a group: he has described
them all as "killers."

At Guantanamo Bay arrangements for the trials are proceeding
with great efficiency. A court room with an execution chamber
nearby has apparently been constructed. But the British prisoners
will not be liable to be executed. The Attorney-General has negotiated
a separate agreement with the Pentagon on the treatment of British
prisoners. He has apparently received a promise that the British
prisoners of war will not face the death penalty. This gives
a new dimension to the concept of "most favoured nation"
treatment in international law. How could it be morally defensible
to discriminate in this way between individual prisoners? It
lifts the curtain a little on the arbitrariness of what is happening
at Guantanamo Bay and in the corridors of power on both sides
of the Atlantic.

The United States government seeks to justify its action by
relying on the Quirin case. It is a case rooted in the circumstances
of the Second World War. Humanitarian law was not yet developed.
It is worth recalling that at Yalta, Churchill, a humane man,
argued that the Nazi leaders should be shot after the war as
soon as they were caught. Stalin, who knew a thing or two about
trials, said that they should be tried before they were shot.
Roosevelt had no trouble with a trial as long as it was in his
words "not too judicial". That was a long time ago.
In any event, the circumstances of the Nazi saboteurs were very
different from the position at Guantanamo Bay. Now there has
been no declared war. Congress has not authorised the military
commissions. The Guantanamo Bay prisoners are subject to military
prosecution for violations never before considered war crimes.
They are deprived of the right of confidential communications
with their lawyers; access to all relevant evidence; and judicial
review - all of which were afforded to the German saboteurs.
Most importantly, the status of the German saboteurs as enemy
aliens was beyond dispute whereas the 660 prisoners at Guantanamo
Bay are not enemy aliens, i.e. citizens of a state at war with
the United States, and in any event, are not a homogeneous group
since some were captured on the battlefield in Afghanistan and
some elsewhere. They are deprived of any right to test the legality
of their detention. The Quirin case does not therefore support
the action taken at Guantanamo Bay. In any event, today it is
widely regarded as a sordid episode in United States history.
Legal scholars are agreed, as Professor Bellknapp put it "that
the court had fallen into step with the drums of war". Professor
Danelski described Quirin as "an embarrassing tale of .
. . a prosecution designed to obtain the death penalty . . .
a rush to judgment and agonising effort to justify a fait accompli."
He ended by saying that if there is a lesson to be learned, "it
is that the court should be wary of departing from its established
rules and practices, even in times of national crisis, for at
such times the court is especially susceptible to co-optation
by the executive." The reliance of the United States Administration
on this discredited precedent ignores more than half a century
of progress of humanitarian law, notably in response to prisoners
captured during armed conflict.

The Court of Appeals for the District of Columbia Circuit
has recently in consolidated cases ruled that, despite the fact
that the United States has had exclusive control over Guantanamo
Bay since 1903, the courts have no jurisdiction to examine the
legality of the detention of the prisoners. The Court of Appeals
decided that it has no jurisdiction to consider the claims by
nationals of Kuwait, Australia and Britain, captured by United
States military forces in Afghanistan or Pakistan. The applicants
were not enemy aliens. Each of the applicants denied that he
had engaged in hostilities against America,
sought an explanation for the indefinite detention and complained
of the refusal of access to legal counsel. Judge A Raymond Randolph
(for the three-judge panel) concluded that the American courts
had no jurisdiction because the claimants were aliens, were captured
during military operations abroad, were now detained outside
the United States, and had never been present in the United States.
Even evidence of torture by the military authorities, however
compelling, may not be examined. In other words, the court ruled
that the United States government may legally evade the jurisdiction
of the United States courts in the case of foreign nationals
by its choice of a place of imprisonment beyond American soil.
But on 10 November 2003 the United States Supreme Court granted
certiorari for the case to proceed to a substantive hearing on
the question whether the lower courts were right to conclude
that they had no jurisdiction to entertain habeas corpus applications.
This will be the only issue on which the Supreme Court will rule.
That hearing will take place in the Spring next year. When the
matter is considered by the United States Supreme Court it will
have before it the considered view of our Court of Appeal. When
an action was brought in British courts on behalf of a British
citizen detained at Guantanamo, the Master of the Rolls, Lord
Phillips of Worth Matravers, said:

"We find surprising the proposition that the writ
of the United States courts does not run in respect of individuals
held by the United States government on territory that the United
States holds . . . under a long-term treaty."

He called it "objectionable" that a prisoner had
no opportunity to challenge the legitimacy of his detention before
a court or tribunal.

It is now necessary to bring some of the threads together.
In doing so a distinction must be drawn between two principal
features. First, on the basis of the decision of the Court of
Appeals for the District of Columbia Circuit the prisoners have
no right of recourse to any courts to determine on an individual
basis their status or to rule on the lawfulness of their treatment.
Secondly, there is the failure of the procedures and rules governing
trials before military tribunals at Guantanamo Bay to measure
up to minimum international standards. I turn to the first aspect.

The United States has a long and honourable commitment to
Magna Carta and allegiance to the rule of law. In recent times
extraordinary deference of the United States courts to the executive
has undermined those values and principles. As matters stand
at present the United States courts would refuse to hear a prisoner
at Guantanamo Bay who produces credible medical evidence that
he has been and is being tortured. They would refuse to hear
prisoners who assert that they were not combatants at all. They
would refuse to hear prisoners who assert that they were simply
soldiers in the Taliban army and knew nothing about Al-Qaeda.
They would refuse to examine any complaints of any individuals.
The blanket presidential order deprives them all of any rights
whatever. As a lawyer brought up to admire the ideals of American
democracy and justice, I would have to say that I regard this
as a monstrous failure of justice.

In English law the writ of habeas corpus protects citizens
and aliens alike. That is how it should be because foreign nationals
must obey our laws and therefore deserve the protection of our
laws. The writ is available whenever the detained person enters
territory under the control of the Crown. That is consistent
with human rights law. In Cyprus v Turkey, (1982) The European
Court of Human Rights held that states are: "bound to secure
the said rights and freedoms of all persons under their actual
authority and responsibility, whether that authority is exercised
within their own territory or abroad." Let me illustrate
the point. Reports have been published in the media and by human
rights groups of the detention of suspected Al-Qaeda suspects
at the United States military facility at Diego Garcia. The British
government has denied this allegation. One must accept this categorical
assurance.

But if the allegation had been true the writ of habeas corpus
would have been available in respect of prisoners at the United
States military facility because this small island is part of
British Indian Ocean Territory and is leased to the United States.
It would have been sufficient that the British government controls
the territory. Until 11 September the understanding of the law
of habeas corpus would have been the same in the United States.
Deference to the executive has so far eroded the cardinal principles
of habeas corpus. By denying the prisoners the right to raise
challenges in a court about their alleged status and treatment
the United States government is in breach of the minimum standards
of customary international law. The importance of this right
is underlined by the experience of the Gulf war when the military
held about 1200 hearings to assess the status of captured prisoners,
and about two-thirds were found not to be combatants. It is surely
likely that in the chaos of the Afghanistan war and its aftermath
the United States military forces picked up a great many who
were not even combatants.

While my focus is on the prisoners at Guantanamo Bay, denial
of justice to foreigners was bound to erode the civil liberties
of citizens in the United States. It was said that the Patriot
Act is largely targeted at foreign nationals. The background
is that 20 million non-citizens living in the United States cannot
vote. In a book published in May this year David Cole, a Professor
at Georgetown University Law Centre, has shown how oppressive
treatment of foreign nationals paves the way for similar measures
against American citizens. In recent times the United States
government has imposed military
custody on two United States citizens. In Hamdi the prisoner
had been arrested on the battlefield in Afghanistan. In January
2002 he was transported to Guantanamo Bay. In April 2002 he was
moved to military detention at a military base in Norfolk, Virginia.
The Court of Appeals for the Fourth Circuit upheld the indefinite
military detention of the prisoner as an unlawful combatant.
Padilla is an American citizen arrested on American soil. In
June 2002 he was transferred to a military brig in South Carolina.
He challenged the lawfulness of his detention. A District judge
held that "the commission of a judge . . . does not run
to deciding de novo whether Padilla is associated with Al Qaeda
and whether he should therefore be detained as an enemy combatant."
Previously, there had been very little protest about the United
States governments actions at Guantanamo Bay. But the action
against United States citizens has caused a chorus of disapproval.
Objectively these protests are justified but inherent in them
are double standards which are deeply troubling. In a review
of David Cole's book in the New York Review of Books Anthony
Lewis commented:

"We must respect the humanity of aliens lest we devalue
our own. And because it is the right thing to do."

That observation is one that we, in the United Kingdom, ought
also to heed.

Let me now turn to the second matter. The question is whether
the quality of justice envisaged for the prisoners at Guantanamo
Bay complies with minimum international standards for the conduct
of fair trials. The answer can be given quite shortly: It is
a resounding No. The military commissions contemplated by the
United States government have been described by Professor Ronald
Dworkin as the type of trials one associates with utterly lawless
totalitarian regimes. David Pannick, Q.C., invoked Kafka's The
Trial in which the great novelist describes how Joseph K's advocate
warns him of the difficulties of presenting a defence when "the
proceedings were not only kept secret from the general public,
but from the accused as well." But as David Pannick observed,
Joseph K could see his lawyer, however incompetent, and there
was a court, however imperfect, making the decision. The military
commissions are not independent courts or tribunals. The term
kangaroo court springs to mind. It derives from the jumps of
the kangaroo, and conveys the idea of a pre-ordained arbitrary
rush to judgment by an irregular tribunal which makes a mockery
of justice. Internationally military commissions at Guantanamo
Bay will be so regarded. Trials of the type contemplated by the
United States government would be a stain on United States justice.
The only thing that could be worse is simply to leave the prisoners
in their black hole indefinitely.

Does the United States Administration care about international
opinion? In his dissenting opinion in Atkins v Virgina , which
was concurred in by the Chief Justice and Justice Thomas, Justice
Scalia observed in a death penalty case: "Equally irrelevant
are the practices of the "world community," whose notions
of justice are (thankfully) not always those of our people".
This isolationist approach may also be the response of the United
States government to criticism about Guantanamo Bay. On the other
hand, there may possibly be winds of change. On 26 June 2003
the Supreme Court by a majority decision in Lawrence et al v
Texas overruled an earlier Supreme Court decision in Bowers v
Hardwick which had upheld Georgia's sodomy law as constitutional.
For the first time in its history the court (as opposed to individual
justices) relied on international human rights law and practice.
Justice Kennedy observed:

"When homosexual conduct is made criminal by the law
of the State, that declaration in and of itself is an invitation
to subject homosexual persons to discrimination both in the public
and private spheres. The central holding of Bowers has been brought
into question by this case, and it should be addressed. Its continuance
as precedent demeans the lives of homosexual persons."

Justice Scalia, with whom Chief Justice Rehnquist and Justice
Thomas agreed, said that the majority had signed up to what he
called the homosexual agenda. He observed:

"The court's discussion of these foreign views (ignoring,
of course, the many countries that have retained criminal prohibitions
on sodomy) is . . . meaningless dicta. Dangerous dicta, however,
since this court . . . should not impose foreign moods, fads,
or fashions on Americans."

The relevance of this ongoing debate about the place of United
States law in a global world is, of course, that it may in time
become possible in the United States to look at Guantanamo Bay
in the context of human rights law and humanitarian law regarding
the rights of captured prisoners. It is also just possible that
the Supreme Court could be persuaded to rule that United States
courts have jurisdiction to entertain habeas corpus applications
from prisoners at Guantanamo Bay. That would be an important
vindication of the rule of law but it would leave the prisoners
at Guantanamo Bay with a long struggle to attain (a) justice
on the merits of their habeas corpus applications and (b) fair
trials before regular courts.

So far I have considered what is happening at Guantanamo Bay
in largely legal terms. There is, however, a wider view. Looking
at the hard realities of the situation, one wonders what effect
it may have on the treatment of United States soldiers captured
in future armed conflicts. It would have been prudent, for the
sake of American soldiers, to respect humanitarian law. Secondly,
what must authoritarian regimes, or countries with dubious human
rights records, make of the example set by the most powerful
of all democracies? In his recent John Galway Foster lecture
Professor Koh of Yale University has shown how many foreign governments,
who want to free themselves of the restraints of human rights,
have already directly invoked the United States policy in regard
to the Guantanamo Bay prisoners as justification for their actions.
Thirdly, the type of justice meted out at Guantanamo Bay is likely
to make martyrs of the prisoners in the moderate Muslim world
with whom the West must work to ensure world peace and stability.

What other route could the United States have taken? The International
Criminal Court could not be used to try the Guantanamo Bay prisoners
because the Rome Treaty applies prospectively only, and the prisoners
were captured before the Treaty came into force in July 2002.
The United States courts could have assumed universal jurisdiction
for war crimes. The prisoners would have received fair trials
before ordinary United States courts. It would have been an acceptable
solution. On the other hand, the Muslim world would probably
not have accepted this as impartial justice. The best course
would have been to set up through the Security Council an ad
hoc international tribunal. That would have ensured that justice
is done and seen to be done.

There is, of course, a dilemma facing democracies. Aharon
Barak, President of the Supreme Court of Israel, presided in
a case in which the court held that the violent interrogation
of a suspected terrorist is not lawful even if doing so may save
human life by preventing impending terrorist acts. He confronted
the problem created for democracies by terrorism. He said:

"We are aware that this decision does not make it
easier to deal with the reality. This is the fate of democracy,
as not all means are acceptable to it, and not all methods employed
by its enemies are open to it. Sometimes, a democracy must fight
with one hand tied behind its back. Nonetheless, it has the upper
hand. Preserving the rule of law and recognition of individual
liberties constitute an important component of its understanding
of security. At the end of the day, they strengthen its spirit
and strength and allow it to overcome its difficulties."

Such restraint is at the very core of democratic values.

It may be appropriate to pose a question: ought our government
to make plain publicly and unambiguously our condemnation of
the utter lawlessness at Guantanamo Bay? John Donne, who preached
in the Chapel of Lincoln's Inn, gave the context of the question
more than four centuries ago:

"No man is an Island, entire of it self; every man is
a piece of the Continent, a part of the main; . . . any man's
death diminishes me, because I am involved in Mankind; And therefore
never send to know for whom the bell tolls; it tolls for thee."

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